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Gilchrist v. County of San Diego

United States District Court, S.D. California
Sep 26, 2005
Civil No. 03cv899-IEG(LSP) (S.D. Cal. Sep. 26, 2005)

Opinion

Civil No. 03cv899-IEG(LSP).

September 26, 2005


Order Denying County of San Diego's Motion for Summary Judgment [Doc. No. 31]; Dismissing Defendants State of California Foster Family Home Insurance Fund, Barbara Davidson, and Monique Gremillion


Plaintiff Christy Gilchrist filed this action against the County of San Diego and other Defendants alleging on behalf of her deceased infant son, Carson Wolfe, a violation of civil rights under 42 U.S.C. § 1983. Plaintiff also alleges state law claims of wrongful death and negligence. All Defendants except the County of San Diego have either been dismissed or were never served by Plaintiff. The County now moves for summary judgment on Plaintiff's remaining claims. Plaintiff has filed an opposition, and the County has filed a reply.

A hearing was held before Chief Judge Irma E. Gonzalez on September 15, 2002. Thomas Gilmore appeared on behalf of Plaintiff. Deborah McCarthy of the San Diego Office of County Counsel appeared on behalf of the County of San Diego. Based upon the parties' arguments, for the reasons explained below, the County's motion for summary judgment is DENIED.

Factual Background

On March 15, 2002, Plaintiff gave birth to a seven pound, four ounce baby boy. She named the baby Carson. At the time he was born, Carson's blood showed traces of methamphetamine as a result of Plaintiff's use of the drug during her pregnancy. The San Diego County Health and Human Services Agency ("SDHHSA") removed Carson from Plaintiff's custody. On March 17, 2002, SDHHSA Emergency Shelter Care worker Marilyn Sproat placed Carson in the licensed foster home of Barbara Davidson. San Diego County Protective Services worker Patricia Pepper was assigned to investigate the referral on March 18, 2005. On that date, Ms. Pepper visited Carson in the Davidson foster home. Based upon her investigation, Ms. Pepper filed a Juvenile Dependency Petition on March 20, 2002, requesting that Carson continue in foster care. [Defendant's Exhibit B.] The Juvenile Court found a prima facie showing had been made to warrant Carson's continued detention, and ordered that he remain in foster care. [Defendant's Exhibit C.]

Carson died in foster care on May 6, 2002, when he was two months old. Although the exact sequence of events is not entirely clear, it is undisputed that Carson had been put in an adult bed alongside Mrs. Davidson's 16-year-old granddaughter, Monique Gremillion. One resident of the Davidson foster home checked on Carson at 9:00 a.m. Carson was stretching out his feet, but his eyes were still closed. [Plaintiff's Exhibit 6, p. 3.] When another resident checked on Carson 15 minutes later, he was face down, blue, with blood coming out his nose. [Id.] He was pronounced dead at the scene. The Medical Examiner's autopsy report lists the manner of death as "undetermined between natural (SIDS) and accident." [Defendant's Exhibit A, p. 2.] The autopsy report indicated, however, that "the scene and circumstances are suspicious for overlaying. . . ." [Id..]

Patricia Dawson, Mrs. Davidson's adult daughter who lived in the home, took over the care of Carson, who was crying very loudly, between 9:00 — 10:00 p.m. the night before. Mrs. Davidson and/or Ms. Dawson initially reported that Ms. Dawson put Carson in Monique's bed around 8:30 or 9:00 a.m. [Defendant's Exhibit F, page 18.] These individuals later said, however, that Ms. Dawson laid Carson down in the bed with Monique at about 2:30 a.m. [Plaintiff's Exhibit 6, pp. 2-3, 5.] Monique was overweight and had a history of drug use prior to coming to live with Mrs. Davidson in November 2001. [Plaintiff's Exhibit 6, p. 4.]

There were eighteen people living in the foster home at the time of Carson's death, including the foster parents and their adult daughter, her husband, and their young child. The house had 9 bedrooms and 5 bathrooms. [Plaintiff's Exhibit 6, p. 3.]

Although Monique and the other resident who found Carson dead reported that he had blood coming out his nose, the autopsy does not make note of any such finding.

Following Carson's death, the County filed a formal accusation against the Davidson foster care home. Among the violations listed was that the foster home failed to provide a safe and sturdy bassinet or crib for Carson and that the Davidsons instead routinely put Carson to sleep in bed with their 16-year-old granddaughter, Monique. [Plaintiff's Exhibit 8.] In response to the County's formal accusation, the Davidsons voluntarily surrendered their foster care license.

Procedural History

Plaintiff presented a written claim for damages against the County of San Diego on January 15, 2003. The County denied that claim on January 16, 2003.

Plaintiff filed her complaint in this Court on May 5, 2003, alleging violation of civil rights under 42 U.S.C. § 1983 and other state law causes of action. Aside from the County of San Diego, Plaintiff named as Defendants the State of California Foster Family Home and Small Family Home Insurance Fund, Barbara Davidson, Monique Gremillion, the Public Defender who represented Carson in the dependency proceedings (Claire Lemon), and the San Diego County Office of Public Defender.

On December 15, 2003, the Court granted the County's motion to dismiss the fourth cause of action for professional negligence, and therefore dismissed Ms. Lemon as a Defendant. Plaintiff has reached a settlement with the State of California Foster Family Home and Small Family Home Insurance Fund. Plaintiff has never filed a proof of service of the Complaint upon State Fund, Mrs. Davidson, or Ms. Gremillion.

The County filed this motion for summary judgment on the remaining claims on July 20, 2005. Plaintiff filed an opposition and the County filed a reply. At the request of Plaintiff's counsel, the hearing on the County's motion was continued from August 22 to September 15, 2005.

Summary Judgment Standard

FED.R.CIV.P. 56(c) authorizes the granting of summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Judgment must be entered "if, under the governing law, there can be but one reasonable conclusion as to the verdict."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986);see also Celotex Corp. v. Catrett, 477 U.S. 317 (1986);Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). "If reasonable minds could differ," judgment should not be entered in favor of the moving party. Liberty Lobby, 477 U.S. at 251.

"Summary judgment is appropriate only when, viewing the evidence in the light most favorable to the nonmoving party, the court concludes that there are no genuine issues of material fact with respect to the claims." Taybron v. City and County of San Francisco, 341 F.3d 957, 960 (9th Cir. 2003) (citing Oliver v. Keller, 289 F.3d 623, 626 (9th Cir. 2002)). Rule 56 "requires that a party seeking summary judgment identify those parts of the record that indicate the absence of a genuine issue of material fact." Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1048 (9th Cir. 1995). Where the moving party has shown the absence of a genuine issue of material fact, the opposing party must "designate 'specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324 (quoting Fed.R.Civ.P. 56(e)). The non-moving party must "cite to the record in support of the allegations made in the pleadings to demonstrate that a genuine controversy requiring adjudication by a trier of fact exists." Taybron, 341 F.3d at 960. The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586 (footnote omitted). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted."Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. at 2511 (citations omitted).

Discussion

Plaintiff states claims against the County both under 42 U.S.C. § 1983 and state law.

1. Violation of Civil Rights

Plaintiff alleges that the County deprived Carson Wolfe of his right to due process and equal protection under the Fourteenth Amendment. In particular, Plaintiff alleges that County social workers, pursuant to a County custom or policy, failed to verify that the Davidson foster home had a safe and sturdy crib or bassinet for Carson before his placement. Plaintiff alleges that if the County social workers had complied with their duties in this regard they would have learned that the Davidsons did not have a sturdy crib or bassinet, as they were required to have under state regulations, and that the Davidsons were instead putting Carson to bed with Monique. Plaintiff further claims that County social worker Pat Pepper was told that the Davidsons were putting Carson in bed with Monique, and that Ms. Pepper's failure to act upon that information reflects a County policy of deliberate indifference in violation of 42 U.S.C. § 1983.

The County may be held liable for violation of Carson's civil rights under 42 U.S.C. § 1983 upon a showing: "(1) [Carson] was deprived of a constitutional right; (2) the County had a policy; (3) the policy amounted to a deliberate indifference to [Carson's] constitutional right; and (4) the policy was the 'moving force behind the constitutional violation.'" Mabe v. San Bernardino County, 237 F.3d 1101, 1100-11 (9th Cir. 2001) (quoting Van Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996)). In order to avoid summary judgment, Plaintiff must show that there is a question of fact regarding whether there is a County custom or policy that caused a constitutional violation. Parkes v. County of San Diego, 345 F. Supp. 2d 1071, 1091 (S.D. Cal. 2004).

In the alternative, Plaintiff must show that the County "failed to adequately train its social workers or, had the County failed to train, that this failure deliberately caused a deprivation of [Carson's] constitutional rights." Doe v. Lebbos, 348 F.3d 820, 831 (9th Cir. 2003) (citing City of Canton v. Harris, 489 U.S. 378, 385 (1989)). Plaintiff does not allege failure to train in her complaint or in opposition to the County's summary judgment motion. In addition, Plaintiff presents no evidence regarding what training the County typically provides to its social workers or what training the County provided to the social workers assigned to Carson's case.

A. Deprivation of Due Process Rights

"The right to personal security is a 'historic liberty interest' protected substantively by the Due Process Clause."Burton v. Richmond, 276 F.3d 973, 977 (8th Cir. 2002) (citing Ingraham v. Wright, 430 U.S. 651, 673 (1977)). Because the County removed Carson from his mother's custody, it thereafter had an affirmative duty to avoid placing him a position of known danger. Huffman v. County of Los Angeles, 147 F.3d 1054, 1058 (9th Cir. 1998); Burton, 276 F.3d at 978-79; see also K.H. v. Morgan, 914 F.2d 846, 849 (7th Cir. 1990); Taylor v. Ledbetter, 818 F.2d 791, 797 (11th Cir. 1987). "Once the state assumes custody of a person, it owes him a rudimentary duty of safekeeping no matter how perilous his circumstances when he was free." K.H., 914 F.2d at 849. Failure to abide by that duty may be cause for liability for violation of due process under § 1983. Huffman, 147 F.3d at 1058-59. B. County Policy or Practice

Because Plaintiff does not cite to a formal written policy by the County, she must show a "longstanding practice or custom which constitutes the standard operating procedure of the local government entity." Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). "The custom must be so 'persistent and widespread' that it constitutes a 'permanent and well settled [County] policy."' Id. (quoting Monell, 436 U.S. at 691). Plaintiff argues that the County had a longstanding practice and custom of not requiring its social workers to ensure that foster caregivers comply with state laws and regulations which obligate them to have a "safe and sturdy bassinet or crib" for an infant. Plaintiff alleges and argues that the County social workers had a mandatory duty under state law, prior to placing Carson in the Davidson foster home, to ensure that the home had a sturdy crib or bassinet in which he could sleep. Plaintiff argues that the County social workers' failure to comply with state law and regulations reflected a County policy or custom.

Pursuant to section 89387(a)(5) of Title 22 of the State Regulations regarding Foster Family Homes, a caregiver is required to "provide each child with an individual bed which is equipped with a clean, comfortable mattress, clean linens, blankets, and pillows, as needed, all in good repair." [Plaintiff's Exhibit 2.] Caregivers are also required to "provide each infant with a safe and sturdy bassinet or crib, appropriate to the child's age and size." [Plaintiff's Exhibit 2, California DSS Manual, Regulations regarding Foster Family Homes, § 89387(a)(7).]

Plaintiff also cites Cal. Health Safety Code § 1534(a) which provides that "[e]very licensed community care facility shall be periodically inspected and evaluated for quality of care by a representative or representatives designated by the director. Evaluations shall be conducted at least once per year and as often as necessary to ensure the quality of care being provided." [Plaintiff's Exhibit 3.]

The County implicitly agrees that it has a policy whereby its social workers have no obligation to ensure the existence of a "safe and sturdy" crib or bassinet prior to placement of a child in a licensed foster care home. The County argues that state law does not require anyone from the County, State of California, or otherwise to visit a licensed foster home, prior to placement of an infant, to ensure that there is an adequate crib or bassinet in which that infant will sleep. The County argues that so long as a proposed foster home is licensed, and has passed annual inspection, County social workers are under no obligation to make any additional inquiry at the time of placement. Thus, the Court finds that the County has a "longstanding practice or custom" of not requiring its social workers to make any inquiry at the time of placement regarding sleeping arrangements for an infant child so long as he or she is being placed in a duly licensed foster home.

At the hearing, the County clarified that the County, through a contract with the state, makes Emergency Shelter Care Unit ("ESCU") placements. Prior to making an emergency placement, the ESCU worker "inspects the home by documentation," reviewing the paperwork related to licensing and annual inspections of the foster home.

C. Deliberate Indifference

Plaintiff argues that the County's policy of not requiring its social workers to make any inquiry regarding whether a foster caregiver has a "safe and sturdy" bassinet or crib constitutes deliberate indifference. In addition, Plaintiff argues that the County had actual notice that Carson was being placed into bed with Monique, and failed to take any action. In response, the County argues that state law did not impose upon the County or its social workers any mandatory duty to inspect the Davidson foster home prior to Carson's placement. The County points out that at the time of the required annual licensing inspection in May 2001, ten months before Carson was placed in the Davidson foster home, there was a suitable crib in the home. [Defendant's Exhibit E.] Thus, the County argues that there was no deliberate indifference.

Deliberate indifference occurs "when the need for more or different action 'is so obvious, and the inadequacy [of the current procedure] so likely to result in the violation of constitutional rights, that the policymakers . . . can reasonably be said to have been deliberately indifferent to the need.'"Oviatt v. Pearce, 954 F.2d 1470, 1477-78 (9th Cir. 1992) (quoting City of Canton v. Harris, 489 U.S. 378, 390 (1989)). The question of whether or not state law imposes a "mandatory duty" on social workers is irrelevant to the resolution of Plaintiff's claim that the County was deliberately indifferent to Carson's constitutional rights. "Immunity under § 1983 is governed by federal law; state law cannot provide immunity from suit for federal civil rights violations." Wallis v. Spencer, 202 F.3d 1126, 1144 (9th Cir. 2000) (citing Martinez v. California, 444 U.S. 277, 284 (1980)); see also Good v. Dauphin County Social Serv., 891 F.2d 1087, 1090-91 (3d Cir. 1989) (holding that state law providing immunity from suit for child abuse investigators has no application to suits under § 1983). State law may not create immunities to liability under 42 U.S.C. § 1983 that do not otherwise exist under federal law.Howlett v. Rose, 496 U.S. 356, 376-77 (1990).

Here, there are genuine issues of material fact as to whether County social workers, pursuant to the County's practice and custom, failed to determine whether there was a "safe and sturdy" crib or bassinet in the Davidson foster. Emergency Shelter Care worker Marilyn Sproat states in her declaration filed in support of the County's motion that she was told by Mrs. Davidson that Carson would be sleeping in a bassinet in her granddaughter's bedroom. [Declaration of Marilynn Sproat filed in Support of Motion ("Sproat Decl."), ¶ 6.] In addition, County social worker patricia Pepper states in her declaration in support of the County's motion that when she initially visited the Davidson foster home on March 18, 2002, she noted Carson had a baby carrier, bassinet, clothes, diapers and formula. [Declaration of Patricia Pepper in Support of Motion ("Pepper Decl."), ¶ 10.] These statements, however, conflict with statements made by other County employees and residents of the foster home after Carson's death.

In the investigation following Carson's death, the foster mother told County Licensing Investigator Tami Hopkins that Carson usually "sleeps in a 'car bed, a portable bassinet and he goes where ever we go."' [Plaintiff's Exhibit 6, p. 3.] The foster mother further stated that "this portable bassinet was old and that she was getting ready to throw it out. She stated that about 2 weeks ago they purchased a new stroller that lays flat and they sleep [Carson] in there now. She stated that she does not have a crib or a proper bassinet that sits off the ground in the facility for [Carson]." [Id.] Ms. Hopkins in her report states that Mrs. Davidson was getting ready to throw out the portable bassinet "because it was falling apart." [Id., p. 4.] Ms. Hopkins "observed that there was no crib or proper bassinet in the entire facility." [Id.] Another resident of the foster home told investigators after Carson's death that the foster mother had purchased the "carrier" in which Carson was sometimes put down to sleep two weeks before Carson's death. [Id., p. 5.] These statements contradict the declarations of Ms. Pepper and Ms. Sproat regarding whether there was a bassinet or crib in the Davidson foster home at the time the County placed Carson in their care.

Furthermore, there is a genuine issue of material fact regarding whether anyone told County social worker Pat Pepper that Carson was being placed in bed with Monique. Vicki Guthrie, one of Plaintiff's friends and Carson's godmother, has provided a declaration stating that at she was present when Mrs. Davidson, Monique, and several other residents of the foster home took Carson to visit Plaintiff as Las Colinas Detention Center on March 30, 2002. [Declaration of Vicki Guthrie in Support of Opposition, unnumbered ¶ 2 on p. 2.] Ms. Guthrie states that Monique told her "He's my baby, not Christy's. I'm not giving him back. Christy doesn't deserve this baby. This baby is mine. We go on the bus to the mall with my friends. He sleeps with me in my bed." [Id.] Ms. Guthrie states that at the conclusion of an April 17, 2002 juvenile court hearing regarding the dependency petition, she told County social worker Pat Pepper about this incident and "demanded to know 'How come this baby is sleeping with a 16 year old? How come he doesn't have a bed? Why is he being taken on a bus with no adult supervision?'" [Id., unnumbered ¶ 3.] Ms. Guthrie states that Ms. Pepper told her not to worry, and that everything was okay. [Id.] Given these disputed factual issues, it is appropriate to allow the jury to determine whether the acts or omissions of the County's social workers, pursuant to the County's policy, constitutes deliberate indifference. Oviatt, 954 F.2d at 1477-78.

Although Ms. Guthrie states in her declaration that she asked that Carson be placed in her care, rather than in a foster home, social worker Pat Pepper's notes indicate that Ms. Guthrie was unable to care for Carson. [Defendant's Exhibit F, p. HHSA-0009-10.]

D. Causation

The County argues that even assuming its social workers had a duty to ensure the existence of a safe and sturdy bassinet or crib, Carson's death did not result from any deliberate indifference on the part of the County. The County argues that there was a bassinet in the Davidson foster home, and that Carson's death was not caused by any defect in the bassinet. As indicated above, however, there are disputed issues of fact precluding summary judgment regarding what County social workers knew about the sleeping arrangements for Carson within the Davidson foster home. Furthermore, if there was no proper crib or bassinet for Carson within the Davidson foster home, it is readily forseeable that Carson would be placed in an adult bed along with another person.

The County has a policy of not requiring its social workers to investigate to determine whether a state licensed foster home has a "safe and sturdy" crib or bassinet for an infant at the time of placement as required by state regulations. There are disputed issues of material fact regarding whether the acts or omissions of County social workers, in accordance with that policy, constituted deliberate indifference to Carson's substantive due process rights under the Fourteenth Amendment. These issues of fact preclude summary judgment on Plaintiff's claim under 42 U.S.C. § 1983. 2. State Law Claims for Wrongful Death and Personal Injury

The County argues that it is also entitled to summary judgment on Plaintiff's state law wrongful death and personal injury claims. The County argues that Plaintiff has failed to identify a breach of a mandatory duty so as to justify direct liability against the County under Gov't Code § 815.6 and has failed to demonstrate that the County's employees breached any duty owed to Carson so as to justify vicarious liability against the County of its employees under Gov't Code § 815.2. Finally, the County argues that its employees actions were purely discretionary such that the County is entitled to immunity under Gov't Code § 820.2.

A. Direct Liability under Government Code § 815.6

Pursuant to Cal. Gov't Code § 815(a), a public entity "is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person." Thus, a public entity generally may not be held directly liable for general common law negligence. Williams v. Horvath, 16 Cal. 3d 834 (1976). Where a public entity has a mandatory statutory duty, however, Gov't Code § 815.6 provides that the entity is liable for injury resulting from a failure to perform that mandatory duty "unless the public entity establishes that it exercised reasonable diligence to discharge the duty."

In order to avoid summary judgment on her claim that the County had a mandatory duty under § 815.6, Plaintiff must: (1) identify the particular enactment upon which she intend to rely, (2) establish that the enactment imposed a mandatory, as opposed to a discretionary duty on the County, (3) establish that the enactment was intended to protect against the risk of injury allegedly suffered by Carson, and (4) establish that the breach of the mandatory duty was the proximate cause of Carson's death. Gov't Code § 815.6; County of Los Angeles v. Superior Court, 102 Cal. App. 4th 627, 638-39 (2002); Becerra v. County of Santa Cruz, 68 Cal. App. 4th 1450, 1458 (1998). The court must determine, as a matter of law, whether the particular enactment created a "mandatory duty." Becerra, 68 Cal. App. 4th at 1458. "An enactment creates a mandatory duty if it requires a public agency to take a particular action. . . . An enactment does not create a mandatory duty if it merely recites legislative goals and policies that must be implemented through a public agency's exercise of discretion." County of Los Angeles, 102 Cal. App. 4th at 639.

Here, the Court concludes that the code and regulations imposed a mandatory duty upon County social workers. DSS Regulation 89287 requires that "[t]he caregiver shall provide each infant with a safe and sturdy bassinet or crib, appropriate to the child's age and size." DSS Regulation 89244 provides that "[t]he Department or licensing agency shall have the inspection authority specified in Sections 1533, 1534, and 1538 of the Health and Safety Code." Health Safety Code § 1533 provides that "any duly authorized officer, employee, or agent of the State Department of Social Services may . . . enter and inspect any place providing personal care, supervision, and services at any time, with or without advance notice, to secure compliance with, or to prevent a violation of any provision of this chapter." Health Safety Code § 1534(a)(1)(A) provides that "[e]very licensed community care facility shall be periodically inspected and evaluated for quality of care by a representative or representatives designated by the director. Evaluations shall be conducted at least once per year and as often as necessary to ensure the quality of care being provided."

These regulations and code sections, in combination, impose a mandatory duty upon the County to ensure, at the time of placement of an infant into a licensed foster home, that there is a "safe and sturdy bassinet or crib" in which the infant can sleep. This is not a case, like County of Los Angeles, 102 Cal. App. 4th at 643, where the regulation provides only "general policy goals for the social worker, but does not specifically direct the manner in which the goals will be attained." Id. The statutes and regulations here provide more than a vague obligation "to secure compliance with, or to prevent a violation of any provision" of the Code and regulations. The statutes and regulations, instead, require that an infant be provided a separate crib or bassinet in which to sleep and that the licensing agency inspect the home "as often as necessary" to ensure compliance with those regulations. The social worker placing the child does not need to make a discretionary judgment call to determine whether the caregiver is complying with this requirement. See Becerra, 68 Cal. App. 4th at 1460;Scott v. County of Los Angeles, 27 Cal. App. 4th 125, 134-35 (1994).

If the only issue in dispute at this point in the case is whether or not the bassinet in the Davidson home was "safe and sturdy," the Court would agree that the County's duty to comply with the regulation was purely discretionary. The evidence now before the Court, however, is disputed as to what County social workers did to ensure that the Davidson foster home had a crib or bassinet in which Carson could sleep. In addition, there is evidence before the Court that County social worker Pat Pepper knew that Carson was being placed in bed with Monique. Furthermore, the injury suffered by Carson is of the type the regulation was intended to protect against and there is a question of fact as to whether the violation of the mandatory duty was the proximate cause of Carson's death.

B. Vicarious Liability under Gov't Code § 815.2

Alternatively, Plaintiff argues that because the County removed Carson from his mother's custody and placed him in foster care there was a "special relationship" between the County and Carson sufficient to impose a duty of care upon the County's social workers. Ronald S. v. County of San Diego, 16 Cal. App. 4th 887, 894-95 (1993). Because the County can only act upon a duty arising out of a "special relationship" through its employees, the County is essentially held vicariously liable under Gov't Code § 815.2 for any act or omission. Id. at 891, fn.1;Scott, 27 Cal. App. 4th at 141. To avoid the imposition of vicarious liability, the County must demonstrate that it is otherwise immune. Gov't Code § 815.2 ("a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability"); Ronald S., 16 Cal. App. 4th at 895.

The County argues that it is immune from liability under Gov't Code § 820.2 because the act or omission of its social workers "was the result of the exercise of the discretion." Gov't Code § 820.2. Immunity attaches under § 820.2 to "those decision which involve 'basic policy' choices which constitute an exercise of discretion by a coordinate branch of government and therefore should 'remain beyond the range of judicial inquiry.'" Scott, 27 Cal. App. 4th at 141 (quoting Johnson v. State of California, 69 Cal. 2d 782, 793 (1968)). Plaintiff in this case, however, is not challenging the County social workers' general policy decision to place Carson in the Davidson foster home. Plaintiff claims that the County's social worker failed to comply with the requirements of DSS Regulations 89387 and 89244 and Health Safety Code § 1534(a)(1)(A). As explained above, these regulations and statutes require County social workers to inspect to ensure that a crib or bassinet is provided prior to placement of an infant in a foster home. Section 820.2 of the Government Code does not provide the County with immunity under these circumstances. Scott, 27 Cal. App. 4th at 142.

Conclusion

For the reasons set forth herein, the County's motion for summary judgment [Doc. No. 31] is DENIED. Upon Plaintiff's consent, at the time of the hearing, Plaintiff's claims against Defendants State of California Foster Family Home Insurance Fund, Barbara Davidson, and Monique Gremillion are dismissed pursuant to Fed.R.Civ.P. 4(m).

IT IS SO ORDERED.


Summaries of

Gilchrist v. County of San Diego

United States District Court, S.D. California
Sep 26, 2005
Civil No. 03cv899-IEG(LSP) (S.D. Cal. Sep. 26, 2005)
Case details for

Gilchrist v. County of San Diego

Case Details

Full title:CHRISTY GILCHRIST, Plaintiff, v. COUNTY OF SAN DIEGO, a public entity, et…

Court:United States District Court, S.D. California

Date published: Sep 26, 2005

Citations

Civil No. 03cv899-IEG(LSP) (S.D. Cal. Sep. 26, 2005)